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Lord Carlisle of Bucklow: I am very grateful to the Minister, doing her best as ever to be helpful. On the substance of what she said she was extremely helpful in setting out the steps that are taken. But none of that is written in the Bill. I cannot see, particularly from the fact that those steps are taken, why there should not be a clear recognition in the Bill that before such an application shall be made, whoever it may be—I may be wrong in saying that it is the DPP—shall be satisfied that a normal trial is not possible. It has been said in this House today that it is important not only that justice is done but that it is seen to be done. If this amendment is on the face of the Bill, people will know that somebody has taken those actions. At the moment, there is no reference to it. So while I am very grateful to the Minister on the substance of what she said, she should think about taking this amendment away and turning it into statutory form by Report.

5.15 p.m.

Baroness Scotland of Asthal: I hear what the noble Lord says. It is incumbent on anyone fulfilling the role of Home Secretary of this country to act reasonably in the discharge of their duty and in taking the decisions under these provisions. My noble and learned friend the Lord Chancellor will, I am sure, amplify those answers in relation to the main thrust of the debate. I shall not trespass on his territory in that regard.

Lord Campbell of Alloway: The Government are introducing a special interrogation regime for suspected terrorists. That is why my noble friend is quite right to say that in this circumstance—never mind what happens usually—this amendment ought to be on the face of the Bill.

Lord Kingsland: May I add to what I am sure are not the noble Baroness's words? In her extremely helpful
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response, I entirely understand that before he or she decides to act, the Home Secretary will have taken soundings from the DPP or other prosecutorial authorities about the merits of prosecution. But surely it is the judge who makes the order who has to be satisfied that prosecution is not possible, not the Home Secretary. It is not up to the Home Secretary to decide, it is up to the judge. Therefore, my noble friend Lord Carlisle of Bucklow is absolutely right in saying that this has to be on the face of the Bill, the obligation has to be clear, and ultimately the judge cannot issue a final control order until he is satisfied that a prosecution cannot in all the circumstances take place.

Lord Cameron of Lochbroom: Before the Minister speaks again, perhaps I could raise a point in regard to what she has said. The noble Lord, Lord Forsyth, raised this matter earlier à propos the Home Secretary and the Secretary of State for Scotland. In Clause 12, the definition of "the court" clearly makes a distinction between a controlled person whose principal place of residence is in Scotland, in which case the Scottish courts have jurisdiction, and those elsewhere. The High Court has jurisdiction in Northern Ireland and in any other case it is the High Court in England and Wales.

In her statement, the Minister referred to the Director of Public Prosecutions. His responsibility and that of the Attorney-General is concerned with England and Wales, and, in the case of the Attorney-General, with Northern Ireland as well. It does not run north of the border. With regard to issues such as where a prosecution were to take place, if there were to be discussion beforehand involving the prosecuting authorities, it should be clear that in the case of a person whose principal place of residence is in Scotland and whose suspected offence may involve activities carried out only in Scotland, the proper prosecution authority from whom advice is sought is the Lord Advocate. I should be grateful if the noble Baroness could confirm that, in those circumstances, that would be a source from which the Home Secretary would receive advice. Alternatively, since the amendments proposed make reference only to the Director of Public Prosecutions, some reference should be made to Scotland.

Baroness Hayman: I have considerable sympathy with the case that was put forward by the noble Lord, Lord Carlisle of Bucklow, because it is essential to limit to an irreducible minimum the number of control orders that are issued. That is not to take an absolutist view; I believe that there will be an irreducible minimum of cases where control orders are the only way forward. I welcome the Government's amendment, because there is a danger, once a control order has been made, of the impetus for prosecution being lost. Amendment No. 126 is therefore very valuable.

However, there is a problem in taking an absolute view about it being essential to look at the possibility of prosecution in advance in the state of the law as it is at the moment without the offence, to which the noble and learned Lord, Lord Lloyd of Berwick, has drawn our attention on many occasions, and to which the Government are committed.
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One issue that we discussed in the Newton committee was the dilemma faced by a Home Secretary who had compelling, but non-evidential, information about a person being involved in terrorism, but firm evidence of a low-level criminal offence such as credit card fraud.

The Earl of Onslow: I have wanted to know the answer to this question for a long time. If somebody is going around committing credit card fraud, talking to somebody else and thinking of blowing up something, surely he is conspiring to blow up something. Therefore, he is committing an offence. Why does the law of conspiracy not apply?

Baroness Hayman: I finished my legal education in 1969 so I am not the right person to answer that question, although one of the recommendations of the Newton committee was that attention should be given to the possibility of an aggravating factor of association with terrorism being available, as it is in some jurisdictions such as France, for consideration alongside lower-level crimes so that an additional penalty could be imposed. That might satisfy the circumstances of some of those cases. But I think that the evidence for conspiracy would be difficult to bring forward.

I return to my point about the proportionality and the appropriateness of the response. A fine for a low-level offence such as credit card fraud might not be appropriate and proportionate to the protection that was needed, in light of the information that was available. That protection would be given by a control order. The issue is slightly more complicated even than we might have thought, but it leads me to restate the advantages of prosecution and the need for a general offence which pulls more people into the prosecutory net.

Baroness Scotland of Asthal: I take up my noble friend's last point about the benefits of prosecution wherever possible. That remains so. I reassure her yet again that those issues will be looked at, but with the structure of our laws being as it is, with acts preparatory not being included, we cannot prosecute in those cases.

Of course, if there are substantive offences, whether cheque fraud or otherwise, for which individuals can be prosecuted, prosecution takes place. Indeed, substantive offences, which are not the offences that we are currently dealing with, have been prosecuted in relation to others wherever possible. That remains the same.

On the position of the advice taken from the security services and the police, as I said earlier, the police will have consulted the Crown Prosecution Service on whether prosecution is possible before coming to the Home Secretary. I assume that the CPS is the correct prosecution authority for the police to consult and therefore those matters are already dealt with.

Lord Lloyd of Berwick: The noble Baroness knows that I am keen to see the new offence put on the statute book. What is the time-frame for introducing it? How
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soon could it be brought forward? I believe that it would make a lot of difference to the number of cases which could be prosecuted.

Baroness Scotland of Asthal: I have indicated that we will bring forward these provisions as soon as the parliamentary timetable allows. I have said on a number of occasions that the Government very much appreciate the urgency of the situation. We hear what is being said about the advantages of bringing forward the offence at the same time as this legislation. That has not been possible, but I assure noble Lords that as soon as the provisions can be brought forward, they will be. This is not a case where we feel that a timeline benefits anyone.

I shall reiterate what was said by my noble and learned friend the Lord Chancellor. We expect these powers to be used as a last resort, not a first resort, and where no other provisions will suffice. I hope that noble Lords are able to take comfort from the fact that the powers under the trenchant Part 4 provisions have been used by my right honourable friends the former Home Secretary and the present Home Secretary very sparingly indeed. It was felt necessary and proper to use those powers only in 17 cases, each of which was thoroughly scrutinised. Noble Lords will recall that in all but two of those cases, the judgment of the Home Secretary was found to be absolutely sound. I hope that reassures noble Lords that we do not intend to use these provisions any more liberally than the Part 4 provisions. They represent an absolute last-ditch attempt to keep our country safe. I can assure noble Lords that they will be resorted to very reluctantly and only when no other course can reasonably be undertaken.

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